CAFC Opinions Available on Pacer Hours before Court’s Website

I learned just the other day that Pacer posts CAFC opinions more than an hour before they become available on the court’s web page.  If you’re of record in the case,  you get the usual notification, and so you’ll know of the opinion — and outcome — before most people, and could take advantage of that “public” information to make some money on the market.

I don’t know securities laws, but this seems like it could be a problem for that and other reasons.  No?

17 thoughts on “CAFC Opinions Available on Pacer Hours before Court’s Website

  1. In some districts/circuits, the Pacer functionality allows a person to register for notifications via RSS feeds. See link to pacer.gov Unclear if these are real time RSS feeds. Also, I recall some Pacer versions giving the option of registering for notifications for case filings to persons not representing a party, but I could be wrong.

  2. Professor Hricik, I think you answered your own question. If the information is “public” (i.e. readily accessible to the public via having an account on PACER), then I don’t believe that trading on that information is a violaiton of securities laws. In other words, just because it isn’t widely distributed information (i.e. available only on PACER before its “publicly” posted on the CAFC website) doesn’t give rise to insider trading which is predicated on trading a security based upon material, non-public information (not information with limited public distribution).

      1. I saw nothing smarmy in Bemused’s answer and the rhetorical t001 of feigned indignation does nothing here Ned.

        Plenty of your posts contain far more “smarm.”

        As to PACER being truly a public forum, well, that’s a different point to ponder.

        When this conversation came up on the main blog, I pointed out that such just was not a clear point.

        Yes, pretty much anyone can obtain a PACER account, but that account is not free, nor is the point of timing completely alleviated just because access can be obtained.

        One point to consider is that notification to selected parties is made in advance of true notice to the general public. One simply does not “sit on the edge” and pour over every item released on PACER in real time in order to obtain the same or even somewhat close equivalent notice.

        1. anon, I am providing a legal argument here in defense of an accused criminal. However, there is right and there is wrong, and here it is very clear to me what is right and what is wrong.

        2. I agree — that’s the issue: is information on Pacer (given limited search capabilities, and given that, unless you’re running searches every day at the right time you won’t get the information until sometime after parties/amici do) public for purposes of securities laws? I don’t know. I also wonder if there’s more beyond that?

          1. In other patent regards, merely being in a library, open to the public is not good enough and indexing (a working system to make things truly “public-accessible”) is key.

            A confounding factor here is the affirmative reaching out and giving notice to selected parties. Now, if there was a pre-announcement that certain decisions would be posted (in PACER) prior to the actual posting, such that all parties obtained the same notice at the same time….

          2. It may be legal, but it stinks. The info should be posted on the court’s web site at the same time it becomes available on PACER.

      2. Not really, Ned. Nothing smarmy about my post (I have, however, been rightly called an SOB – but in other contexts). I’m a former securities lawyer so I was trying to respond to Prof. Hricik’s question. And for what its worth, I know Prof. Hricik personally and I consider him a friend so he’s one person I’d never be smarmy to.

        1. Bemused, I find it amusing when one provides a legal justification for something that clearly is unethical.

          There is a time when a small group of people know a fact, and a later time when that fact is generally published. Just because the information is not technically confidential, it is not technically published either, being behind a paywall.

          Now there the securities law may not punish taking advantage of this short-term disparity in information. But I certainly think bar associations might be interested.

          1. A grand statement of “clearly unethical” is not a legal argument either Ned.

            You do take a step closer with your second paragraph, but the conversation has already noted that item.

          2. Since when must information be available without charge to be considered “published”?

            Before the Internet, information was published in books and, no, you (usually) couldn’t get them for free.

            Publication has little to do with cost. Perhaps if a document cost so much that -nobody- was willing to pay for a copy, then some argument could be made that it was not thereby published.

            1. Not a bad question, Harry.

              I think the “cost” factor is not in itself determinative, but rather it is part of the publication/timing mechanism.

              As I pointed out on the main thread for this discussion topic, the cost itself might be de minimus (I actually signed up for a personal account and have yet to have downloaded enough volume to be charged).

              But that is also because I am not downloading EVERYTHING which might be a selective requirement for a non-party to stay as informed as a party; and this does implicate more so the “notification” and “indexing” aspect that does have a much stronger impact to traditional “publication” status.

            2. Green, the fee is not the issue. It is the time lag between electronic notice to the attorneys and the publication on the website that is at issue.

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